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Texas same-sex couples ask federal judge to halt enforcement of marriage ban

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Texas state sealGay couples leading a federal challenge to Texas’s same-sex marriage ban are asking a federal judge to issue a preliminary injunction, a move that, if allowed by the judge, would block the state from enforcing the ban. The motion, filed on Friday, focuses on the harms to loving same-sex couples and their children:

Unless this Court takes immediate action, Plaintiffs and others like them will continue to suffer irreparable harm—not in some theoretical sense, but in real human terms. This morning, Plaintiffs woke up in a world unimaginable to the majority of citizens, a world in which Plaintiffs are denied equal rights, and thus deemed inferior, because of their sexual orientation—a characteristic as immutable as their sex, their skin color, or their nationality. Today, children of same-sex parents attended school and suffered the stigma that their parents are not permitted to wed, that they are the product of relationships between citizens the state deems unworthy and inferior, and they will wear that badge of inferiority to bed tonight. Today, or perhaps tomorrow, someone in a long-term committed same-sex relationship will die without ever having been married to the person he or she loves, or without having their marriage recognized by the State of Texas.

Lambda Legal staff attorney Ken Upton commented on the odds that the motion will be granted:

“It depends on the harm that they can show from waiting anymore,” Upton said. “So, for example, if a couple were unable to get married because one is terminally ill, that might be enough for the court to grant relief. Generally speaking, however, preliminary injunctions are only to maintain the status quo. So its a heavy burden on the plaintiffs.

“The problem the court may have, is what if the plaintiffs lose on the merits at trial? What happens to any marriage licenses that were issued in the interim” Upton said. “The short of it is that the court has to weigh the harm to the plaintiffs against the harm to the state and project who is likely to win.”

The filing also argues that the plaintiffs have demonstrated a “likelihood of success on the merits,” a standard that must be met for a preliminary injunction to succeed. The defendants are likely to file an opposition.

Thanks to Kathleen Perrin for this filing


  • 1. Eric  |  November 25, 2013 at 1:11 pm

    What exactly is the harm to the state? How would the harm differ from when the state issues any marriage license that is later deemed invalid?

  • 2. Dr. Z  |  November 25, 2013 at 7:59 pm

    Good luck to them. Unfortunately both the Texas SC and the Fifth Circuit are chock full of right wing mouthbreathers; and the SCOTUS judge in charge for the Fifth Circuit is Scalia. Formidable odds.

  • 3. Straight Ally #3008  |  November 25, 2013 at 9:32 pm

    That's Alamo-level gutsy.

  • 4. Straight Dave  |  November 25, 2013 at 10:44 pm

    Anything LGBT in Texas is generally gutsy. But this isn't all that much more so than most places. First, it starts out as a federal case so the TX SC gets bypassed entirely. Virtually any marriage case these days will be taken to SCOTUS by one of the parties, so the 5th is just a stepping stone. A request for cert would get handled by the whole court so Scalia only gets one vote. And if he wants to push it, he might just get a reprise of Lawrence. Seems to be carved into his genes.

  • 5. Dr. Z  |  November 26, 2013 at 7:54 am

    I generally agree but a couple of points to note.
    1. Should we get a lucky draw of judges at the Fifth Circuit and win the appeal, the Fifth has a history of using en banc to reverse gay rights decisions that are favorable to us.
    2. In the event that the Fifth issues rulings that are favorable to us, Scalia is the justice we'd have to appeal to.

  • 6. Dr. Z  |  November 26, 2013 at 7:56 am

    Just to clarify, I was referring to preliminary rulings on motions, not final rulings.

  • 7. JustMe  |  November 29, 2013 at 6:25 pm

    Gov GoodHair has already asserted soverign immunity. The suit is one in tort, and Texas has not waived soverign immunity. Looks like this one will be dismissed.

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